Riverview Road Pty Limited v Pittwater Council

CASES CITED: GPC No5 (Wombarra) Pty Limited v Wollongong City Council [2003] NSWLEC 268

APPLICANT Ms S Hill, solicitor SOLICITORS Susan Hill & Associates Lawyers Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT Ms G Furness, barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10971 of 2009 Riverview Road Pty Limited v Pittwater Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the decision of Pittwater Council (the council) to refuse Development Application No. N0406/09 for the demolition of all existing structures and the erection of a 6 x 2 bedroom apartment building for aged persons or persons with a disability with underground car parking for 14 vehicles, swimming pool, cabana and boat shed at 1 Riverview Road, Avalon (the site). The site 2 The site consists of two lots, Lot A in DP377157 and lot D2 in DP382511 and has an overall area of 2475 sq m. Lot A is 5 sided, but generally rectangular with an area of 1943 sq m. Lot D2 is a narrow 6 m lot from Lot A to Pittwater with an area of 531.1 sq m. 3 The site is located on the corner of Riverview Road and Hudson Parade. The site slopes up from these roads to a plateau and then there is a steep slope to the west towards Pittwater. The site contains a single storey weatherboard dwelling house and a number of mature indigenous tree species. 4 The locality can be described as the older part of Avalon with typically modest old one and two storey dwellings in mature landscape settings but with a number of new contemporary style dwellings either under construction or constructed. Relevant planning controls 5 The site is zoned Residential 2(a) under the provisions of the Pittwater Local Environmental Plan 1993 (LEP 1993). The proposed use is defined as a residential flat building under LEP 1993 and is a prohibited use however the proposed development is permissible through cl 4(1)(a) of State Environmental Planning Policy (Housing for Seniors or People With a Disability) 2004 (the Policy). The site is not excluded from the provisions of the Policy by way of cl 4(6) and cl 5(3) provides that if the Policy is inconsistent with any other environmental planning instrument, made before or after the Policy then the Policy prevails to the extent of the inconsistency. 6 Clause 10 of the Policy states that "seniors housing" is residential accommodation, that is or is intended to be used permanently for seniors or people with a disability and may take different forms consisting of: (a) a residential care facility or (b) a hostel or (c), a group of self-contained dwellings or (d) a combination of the above. 7 Approval is sought for a group of self-contained dwellings. 8 Clause 32 of the Policy provides that consent must not be granted to a development application unless the Court is satisfied that the proposed development demonstrates that adequate regard has been given to the Design Principles in Division 2. The relevant principle is Neighbourhood amenity and streetscape (cl 33). 9 Clause 40 of the Policy provides that consent must not be granted to a development application unless the development complies with a site area of at least 1,000 sq m (cl 40(2)), a frontage of 20 m measured at the building line (cl 40(3)), a height of 8 m or less (cl 44(a)), 2 storeys in height (cl 44(b)) and single storey in the rear 25% of the site (cl 44(c)). There was agreement that the proposed development satisfies these requirements with the exception of cl 44(c) where there was disagreement on the interpretation of cl 44(c) and consequently whether compliance was achieved. This is addressed later in the judgment. 10 For caution, the applicant has submitted a State Environmental Planning Policy No 1 - Development Standards (SEPP 1) objection, if their interpretation of the clause is not accepted by the Court. 11 Part 7 of the Policy provides development standards that cannot be used as grounds to refuse development consent. Clause 50 provides specific standards for self-contained dwellings and relevantly includes a building height of 8 metres (cl 50(a), a floor space ratio of 0.5 to 1 (cl 50(b)), a landscaped area of 30% of the site (cl 50(c)(ii)), deep soil zones of not less than 15% of the site (cl 50(d)), minimum levels of solar access to the dwellings (cl 50(e)), minimum levels of private open space (cl 50(f), and minimum levels of car parking based on the number of bedrooms (cl 50(h)). There was agreement that the proposal satisfied these requirements in Part 7.

Pittwater Development Control Plan 21 also applies to the site but subject to the requirements in cl 5(3) of the Policy. The contentions 12 The contentions raised by the council can be summarised as: 1.the inadequate regard given to neighbourhood amenity and streetscape on the basis that the proposed buildings have excessive bulk and scale and are inconsistent with the desired character of the area, 2. the proposal does not satisfy the requirements in cl 44(c), in that the proposal is not single storey in the rear 25%, and 3. the proposed boat shed is unsuitable because of the inadequate side setbacks and potential use. The evidence 13 Ms Gina Hay provided town planning evidence for the council and Mr Lance Doyle provided town planning evidence for the applicant. A number of local residents provided evidence on site and supported the contentions raised by the council and also the additional contentions of traffic safety, the impact on the intersection of Riverview Road and Hudson Parade and tree loss. Bulk scale and character The evidence 14 Ms Hay states that the proposal is out of character with the surrounding area. She describes the predominant form of development in the area as one and two storey dwellings in a leafy setting. Dwellings are fairly modest with extensive native flora predominating, particularly the tree canopy. When compared to this character, the proposal is inconsistent by the extent and massing along the street frontages. While modulated, the modulation is on a small scale, compared to the overall size of the buildings. The lack of separation was seen by Ms Hay as being a significant issue as it does not sit easily in its immediate context. 15 Mr Doyle comes to the opposite conclusion. He states that the proposal maintains a height well below the tree canopy level and bulk and scale has been minimised through the modulation and the separation of the two buildings. The existing tree vegetation, including the significant tree canopy, has been retained and supplemented with new plantings. 16 Mr Doyle summarises the desired future character as set out in DCP 21 as: Future development will maintain a height below the tree canopy and minimise bulk and scale. Existing and new vegetation including canopy trees will be integrated with development. The objective is that there will be houses amongst the trees and not trees amongst the houses. 17 When compared to this desired future character, Mr Doyle states that the proposal is acceptable. Findings 18 On this issue, there are a number of matters in the Policy that need to be considered. The Policy, at cl 33, provides that the proposal should: - recognise the desirable elements of the location's current character, (cl 33(a)), - contribute to the quality and identity of the area, (cl 33(a)), - provide setbacks to reduce bulk and overshadowing, (cl 33(c)(i)), - adopt building heights at the street frontage that are compatible with adjacent development, (cl 33(c)(iii)), - adopt a front building line that is in sympathy, but not necessarily, the same as the existing building line, (cl 33(d)), - use planting that is in sympathy with other planting in the streetscape, (cl 33(e)), and - retain major trees, (cl 33(f)). 19 Some guidance in addressing the issue of compatibility of housing for aged persons or persons with a disability within a low density residential development environment is found in GPC No5 (Wombarra) Pty Limited v Wollongong City Council [2003] NSWLEC 268, where four principles are identified. These state: 15 The first principle is that buildings in a SEPP 5 development do not have to be single-storey to be compatible with the streetscape even where most existing buildings are single-storey. The principle does not apply to conservation areas where single-storey dwellings are likely to be the major reason for conservation.

16 The second principle is that where the size of a SEPP 5 development is much greater than the other buildings in the street, it should be visually broken up so that it does not appear as one building. Sections of a building, or separate buildings should be separated by generous breaks and landscaping.

17 The third principle is that where a site has existing characteristics that assist in reducing the visual dominance of development, these characteristics should be preserved. Topography that makes development appear smaller should not be modified. It is preferable to preserve existing vegetation around a site's edges to destroying it and planting new vegetation.

18 The fourth principle is that a SEPP 5 development should aim to reflect the materials and building forms of other buildings in the street. This is not to say that new materials and forms can never be introduced, only that their introduction should be done with care and sensitivity. 20 If the proposed development is considered in the context of the desired future character of Avalon as described in DCP 21, cl 33 of the Policy and the principles in Wombarra, I am satisfied that the conclusions reached by Mr Doyle should be accepted for a number of reasons. These being: - the buildings are two storeys in height, - the set back to Riverview Road and Hudson Parade satisfy the DCP 21 requirements, - all significant vegetation is to be retained beyond those identified and agreed to by the council as being in an unsafe condition, - the proposal satisfies the requirements of the Policy for floor space ratio, landscaped area, deep soil zones, solar access, private open space and car parking, - additional planting is provided, that is in sympathy with other planting in the streetscape, - the form and materials of the proposed buildings are not inconsistent with new development in the area, - the buildings do not create any unacceptable amenity impacts on adjoining properties, - the buildings minimise bulk and scale by providing articulation, appropriate setbacks and landscaping to complement the existing landscaping, and - the buildings provide a reasonable separation when combined with the additional landscaping to visually break-up the development, so as to not appear as one building. The separation is in the order of 7.5 metres. With the most recent amendment to relocate the elevated passageway from the front of the buildings further towards the rear, the perception of two separate buildings is further reinforced. Of the two options proposed, by the applicant, I agree with Mr Doyle that option 1 is the more desirable. 21 In accordance with cl 32 of the Policy, I am satisfied that the proposed development demonstrates that adequate regard has been given to the design principle of Neighbourhood amenity and streetscape. Rear 25% of the site The evidence 22 The parties disagreed on whether the proposed development satisfies the requirements in cl 40(c) that states: ( c) a building in the rear 25% of the site must not exceed 1 storey in height. 23 The dispute centred on the location of the rear 25% of the site. Mr Doyle maintained that the proposal satisfied the requirement as Lot D2 should be included in the assessment. Ms Hay maintained that Lot D2 should be excluded as it was essentially an access handle. If only Lot A was used to determine the rear 25% of the site, then there was an encroachment of the building into this area and as such a SEPP 1 objection was required.

Findings 24 The Policy does not contain a definition of "the site" and while Ms Furness for the council, submitted that I should refer the definition of "site area" in LEP 1993 where an access handle is excluded from the site area, I am not satisfied this is appropriate in the circumstances of this case. 25 There is little doubt that the interpretation of cl 44(c) is problematic for corner lots and irregularly shaped lots however, in the absence of any definition in the Policy of "the site", the site must be the area of the land, the subject of the development application. In this case, this includes Lot D2. The consequence is that the proposed proposal satisfies cl 44(c) and that an SEPP 1 objection is not required. I note that the council raised no issue with the inclusion of Lot D2 in the calculation of the floor space ratio. 26 If I am incorrect in concluding that an SEPP 1 objection is not required, I have considered the SEPP 1 objection of Mr Doyle. The SEPP 1 objection, adopts the following objectives for the development standard: - to minimise impacts on the privacy and amenity of existing neighbouring dwellings, - to minimise overshadowing of existing dwellings and private open space by new dwellings, - to retain neighbour's views and outlook to existing mature planting and tree canopy, and - to reduce the apparent bulk of development and its impact on neighbouring properties and to provide adequate building separation. 27 As the area of the proposed development, that is in breach of the development standard, satisfies the objectives of the development standard, the SEPP 1 objection concludes that strict compliance is unreasonable and unnecessary. 28 After considering the SEPP 1 objection, I concur with this conclusion that the SEPP 1 objection is well founded.

The boat shed 29 The council's concerns over the boat shed relate to firstly, the non-compliance with the DCP 21 requirements for a 1 m setback and secondly, the use of the boat shed for other purposes being located above water level and with no ramp between the water and the boat shed. 30 Pt D1.9 of DCP 21 provides for a 1 m side setback. The boat shed provides a 0.55.m setback to the northern boundary and a zero setback to the southern boundary for the deck or a 3.2 m setback to the boat shed. 31 Pt D1.9 also provides the opportunity to vary setback requirements although not specifically for boat sheds. If the general approach in this clause of allowing variations if the variation does not affect adjoining properties is adopted, then there is no real basis not to allow the variation in this case. The boat shed has little or no impacts on adjoining properties given its location on the foreshore and generous setbacks to any adjoining residence, so I am satisfied that strict compliance with the 1 m setback would be unreasonable and unnecessary, in this case. 32 I am also untroubled over the proposed use of the boat shed. It is proposed to house kayaks and canoes in the boatshed, rather than larger marine craft, so direct access to the water via a ramp is not necessary. I also note, that the boat shed has no toilet, shower or other facilities that would lead to its use for purposes other than a boat shed. Resident issues 33 On those issues raised by local residents, the issue of traffic and the functionality of the intersection of Hudson Parade and Riverview Road was raised consistently, although not as an issue by the council. 34 The traffic report supplied by the applicant to address this issue, comments on the intersection in the following terms: Based on the results of the assessment of the existing intersection operation, additional very minor traffic generation from the proposed development will have no impact on its operation. The intersection will continue to operate at the same levels of service as at present. 35 In the absence of any contradictory expert evidence, I accept the conclusions in the traffic report. 36 The other issue raised by the residents regarding tree loss has been previously addressed in the judgment. Orders 37 The orders of the Court are: 1. The appeal is upheld. 2. DA No N0406/09 for the demolition of an existing dwelling and the construction of 6 units for older people or people with a disability at 1 Riverview Road Avalon is approved subject to the conditions in Annexure A. 3. The exhibits are returned, with the exception of exhibit A.

      G T Brown
      Commissioner of the Court

Pursuant to section 80(1) of the Act, notice is hereby given of the of Development Application No N0406/09 for:

Demolition of existing dwelling and erection of a building containing 6 units for older persons or persons with a disability with underground carparking, swimming pool, cabana and boatshed

At: 1 RIVERVIEW ROAD, AVALON (Lot A DP 377157 and Lot D2 DP 382511) Decision: The Development Application has been determined by the granting of consent based on information provided by the applicant in support of the application, including the Statement of Environmental Effects, and in accordance with A01, A02, A03, A04, A05, A06, A07, A08, A09, A10, A14, A17, A18 all dated 17 March 2010, drawings A20, A21, A22, A23 dated 29 September 2009 and drawn by Richard Cole Architecture as amended in red (shown clouded) or as modified by any conditions of this consent, particularly condition C1 that requires modification to the breezeway between the two buildings and the treatment of the access driveway.

The reason for the imposition of the attached conditions is to ensure that the development consented to is carried out in such a manner as to achieve the objectives of the Environmental Planning and Assessment Act 1979 (as amended), pursuant to section 5(a) of the Act, having regard to the relevant matters for consideration contained in section 79C of the Act and the Environmental Planning Instruments applying to the land, as well as section 80A of the Act which authorises the imposing of the consent conditions.

Conditions of Approval This consent is not an approval to commence building work. The works associated with this consent can only commence following the issue of the Construction Certificate. Note: Persons having the benefit of development consent may appoint either a council or an accredited certifier as the principal certifying authority for the development or for the purpose of issuing certificates under Part 4A of the Environmental Planning and Assessment Act. When considering engaging an accredited certifier a person should contact the relevant accreditation body to ensure that the person is appropriately certified and authorised to act in respect of the development. A. Prescribed Conditions:

1. All works are to be carried out in accordance with the requirements of the Building Code of Australia. 2. Critical stage inspections are to be carried out in accordance with clause 162A of the Environmental Planning & Assessment Regulation 2000. To allow a Principal Certifying Authority or another certifying authority time to carry out critical stage inspections required by the Principal Certifying Authority, the principal contractor for the building site or the owner-builder must notify the Principal Certifying Authority at least 48 hours before building work is commenced and prior to further work being undertaken. 3. A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out: a. showing the name, address and telephone number of the Principal Certifying Authority for the work, and b. showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working house, and c. stating that unauthorised entry to the work site is prohibited.

Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

4. Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the Council) has given the Council written notice of the following information: a. in the case of work for which a principal contractor is required to be appointed: i. The name and licence number of the principal contractor, and ii. The name of the insurer by which the work is insured under Part 6 of that Act. b. in the case of work to be done by an owner-builder: i. The name of the owner-builder, and ii. If the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit. 5. If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (2) becomes out of date, further work must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the Council) has given the Council written notice of the updated information. 6. The hours of construction are restricted to between the hours of 7.00am and 5.00pm Monday - Friday and 7.00am to 1.00pm on Saturdays. No works are to be carried out on Sundays or Public Holidays. Internal building work may be carried out at any time outside these hours, subject to noise emissions from the building or works not being audible at any adjoining boundary.

B. Matters to be incorporated into the development and maintained over the life of the development:

1. The recommendation of the risk assessment required to manage the hazards as identified in Geotechnical Report prepared by Crozier Consultants are to be incorporated into the construction plans. 2. The minimum floor level of new boatshed shall be at or above 3.4m AHD. 3. The Stormwater Harvesting and Reuse Scheme shall be installed and operated in accordance with the accepted design, Environmental and Health Risk Management Plan, Operation and Maintenance Plan, Manufacturer's Specifications and associated operational guidelines. 4. The Stormwater Harvesting and Reuse Scheme shall be maintained as appropriate in accordance with best practice to ensure optimum performance of the stormwater treatment system. 5. As part of the integrated stormwater management plan, suitably positioned stormwater quality improvement devices shall be installed and operated in accordance with Manufacturer's Specifications and associated operational guidelines. 6. The stormwater quality improvement devices shall be maintained and emptied of spoil materials at regular intervals. Spoil materials removed from the stormwater quality improvement devices shall be disposed of as dry mixed waste. 7. As part of an integrated on-site stormwater management system, stormwater overflow from the rainwater tank is to be discharged into the adjacent waterway with erosion minimisation facilities installed. 8. If any Aboriginal Engravings or Relics are unearthed all work is to cease immediately and the Metropolitan Local Aboriginal Land Council (MLALC) and Department of Environment & Climate Change (DECC) are to be notified. 9. At least five (5) locally native canopy trees (heights greater than 8.5 metres) are to be planted onsite to replace trees approved for removal. If planting space is insufficient, trees are to be provided to Council in order to offset a net loss of canopy. Canopy tree species are to be as per the approved Landscape Plan or selected from the list pertaining to the vegetation community growing in the locality as per the vegetation mapping in the Native Plants for Your Garden link on Council's website www.pittwater.nsw.gov.au/environment/plants__and__animals/native_plants. All native trees are to be retained for the life of the development, or for their safe natural life. Trees that die or are removed must be replaced with another locally native canopy tree. 10. For the life of the development, domestic pet animals are to be kept from entering wildlife habitat areas at all times. Dogs and cats are to be kept in an enclosed area or on a leash such that they cannot enter areas of bushland, unrestrained, on the site or on surrounding properties or reserves. Ferrets and rabbits are to be kept in a locked hutch/run at all times. 11. Any vegetation planted outside approved landscape zones is to be consistent with: a. Species listed in the Ecological Sustainability Plan or Bushland Management Plan b. Species listed from the Endangered Ecological Community c. Locally native species growing onsite and/or selected from the list pertaining to the vegetation community growing in the locality as per the vegetation mapping and Native Plants for Your Garden link available from Council's website www.pittwater.nsw.gov.au 12. Over the life of the development all declared noxious weeds are to be removed/controlled in accordance with the Noxious Weeds Act 1993. Environmental weeds are to be removed and controlled. Refer to Pittwater Council website ( www.pittwater.nsw.gov.au ) for noxious/environmental weed lists. 13. No environmental weeds are to be planted on the site. Refer to Pittwater Council website (www.pittwater.nsw.gov.au) for environmental weed lists. 14. Any new fencing is to be made passable to native wildlife. As a guideline, hole dimensions should be 150mm wide X 100mm long at ground level spaced at 6 metre intervals.. 15. Screen planting is to be provided, which after three years will, in conjunction with the canopy planting, screen 50% of the built form when viewed from the street and neighbouring properties. Species selection is to incorporate locally native species. This screen planting is to be retained over the life of the development and replaced if any part of it should die or be destroyed or removed. 16. In accordance with Pittwater Councils Tree Preservation Order, all existing trees as indicated in the Survey Plan and/or approved Landscape Plan shall be retained except where Council's prior written consent has been obtained and/or as approved by this consent, as trees stand within the envelope of approved development areas. For all other tree issues not related to a development application, applications must be made to Council`s Tree Management Officers. 17. A minimum of 200mm clearance is to always be maintained to the tree trunk from proposed bearers, joists and decking. 18. Carparking is to be provided in accordance with the approved plans and visitor spaces are to be clearly marked as such. 19. Unless specifically approved through development consent no mesh enclosing of the car parking spaces of any kind will be permitted. 20. All carparking facilities and driveway profiles, for adaptable and accessible housing, from the street to the on site car parking spaces for the adaptable apartments must comply with AS/NZS 2890.1:2004 Parking facilities - Off-street car parking 21. Garbage enclosures/stores shall be provided and maintained in accordance with the following: a. A separate room or an appropriately constructed area is to be provided for the storage of garbage and recyclables. b. The walls of the enclosure shall be cement rendered and steel trowelled to a smooth, even surface. c. The floor shall be of impervious material coved at the intersection with the walls, graded and drained to an approved floor waste within the room/enclosure. d. Stormwater shall not enter the floor of the garbage enclosure such that the sewer system may be contaminated by rainwaters. e. Garbage and recycling rooms shall be vented to the external air by natural or artificial means. The installation and operation of the mechanical ventilation system shall comply with AS 1668, Parts 1 & 2. f. The room used for the storage and washing down of garbage and recycling receptables shall be constructed of solid material (brick, concrete blocks, structural fibrous cement or similar homogeneous material) so as to prevent the formation of cavities which become possible harborages for insects and vermin. Framing in timber is not permitted. g. The garbage and recycling room shall be made vermin proof. h. Hot and cold water hose cocks shall be located within a garbage enclosure or in close proximity to Councils satisfaction. i. The enclosure shall be of adequate size to accommodate the following bins numbers and capacity per dwelling: i. 80 litres per household per week of garbage, and ii. 70 litres per household per week of paper recyclables, and iii. 70 litres per household per week of container recyclables. The residential waste and recycling enclosure is to be physically separated from the commercial waste and recycling enclosure.

22. The solid fuel or wood burning appliances shall comply with Australian Standard AS 4013-1992 or any subsequent amending standard. 23. No water pollution shall result from the operation of any plant or equipment or activity carried out. 24. A warning notice (resuscitation chart) and External Cardiac Compression Chart is to be affixed and maintained in a prominent location adjacent to the pool / spa. a. The warning notice (i.e. sign) must contain all of the following words: i. "YOUNG CHILDREN SHOULD BE SUPERVISED WHEN USING THIS SWIMMING POOL" and ii. "POOL GATES MUST BE KEPT CLOSED AT ALL TIMES", and iii. "KEEP ARTICLES, OBJECTS AND STRUCTURES AT LEAST 900 MILLIMETRES CLEAR OF THE POOL FENCE AT ALL TIMES", b. In addition, the notice must contain a simple flow sequence (which may be the flow sequence depicted in the Cardiopulmonary Resuscitation Guideline) containing details of resuscitation techniques (for infants, children and adults): i. that are set out in accordance with the relevant provisions of that Guideline, and ii. that comply with the other relevant guidelines of the Australian Resuscitation Council, and iii. that are illustrated by drawings with key words only in bold print, c. a statement to the effect that formal instruction in resuscitation is essential, d. the name of the teaching organisation or other body that published the sign and the date of its publication. 25. All utility services including overhead power supply and communication cables located in the adjacent road verge & those to service the development are to be placed and/or relocated underground for the total frontage of the development site to any public road at the full cost to the developer. 26. All plumbing, electrical wiring and drainage fixtures are to be concealed and not exposed to public view on buildings over one storey in height.

27. The reflectivity index (expressed as a percentage of the reflected light falling upon any surface) of all external glazing is to have a maximum reflectivity index of 25%. Written confirmation of the reflectivity index of material is to be submitted with the Construction Certificate.

(Note: the reflectivity index of glazing elements can be obtained from glazing manufacturers. Glass with mirrored or reflective foil finishes is unlikely to achieve compliance with this requirement. This is to ensure that excessive glare or reflectivity nuisance from glazing does not occur as a result of the development). 28. New electrical connections are to be carried out using underground cabling. 29. Materials and colour schemes are to be in accordance with the samples submitted to Council with the application. No white or light coloured roofs are permitted. 30. The commitments identified in the BASIX Certificate and on the plans or specifications are to be fulfilled and maintained for the life of the development.

C. Matters to be satisfied prior to the issue of the Construction Certificate: Note: All outstanding matters referred to in this section are to be submitted to the accredited certifier together. Incomplete Construction Certificate applications / details cannot be accepted.

1. Prior to issue of the Construction Certificate, the applicant shall submit amended plans to the Principal Certifying Authority that modifies the development in accordance with the driveway concept sketch and Amended Breezway Plan - Option 1 Sketch Drawing A70, which formed exhibits "K" and "L", respectively, in Land and Environment Court of NSW proceedings No. 10971 of 2009, heard on 13 April 2010. 2. Prior to issue of the Construction Certificate, Form 2 of the Geotechnical Risk Management Policy for Pittwater (Appendix 5 of P21 DCP) is to be completed and submitted to the Principal Certifying Authority. 3. Engineering plans including specifications and details of the on-site stormwater detention system, are to be submitted to the Accredited Certifier or Council with the Construction Certificate application. Such details are to be accompanied by a certification by a qualified experienced practicing Civil Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a corporate member and has appropriate experience and competence in the related field, confirming that the plans/details comply with B5.8 of Pittwater 21 DCP.

Note: Where Council is the Principal Certifying Authority, 3 sets of engineering plans are to be submitted. 4. Engineering details showing the stormwater quality treatment system are to be submitted to the Accredited Certifier or Council with the Construction Certificate application. Such details are to be accompanied by a certification by a qualified practicing Water Engineer with corporate membership of the Institute of Engineers Australia ( MIE Aust), or who is eligible to become a corporate member and has appropriate experience and competence in the related field, confirming that the plans/details comply with B5.10 of Pittwater 21 DCP. 5. Drainage plans including specifications and details showing the site stormwater management are to be submitted to the Accredited Certifier with the Construction Certificate application. Such details are to be accompanied by a certificate from (as appropriate) either a Licensed plumber or qualified practicing Civil Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a Corporate member and has appropriate experience and competence in the related field, that the stormwater management system complies with the requirements of section 3.1.2 Drainage of the Building Code of Australia Housing Provision and AS/NZS 3500.3.2 - Stormwater Drainage. The details shall include disposal of site stormwater (if the site is in a known slip area the stormwater disposal system must comply with the recommendations of a Geotechnical Engineers Report).

Note: Where Council is the Principal Certifying Authority 3 sets of plans/specifications are to be submitted. 6. Applicants will be required to obtain prior to the issue of a Construction Certificate, a Section 139 Consent for Works on the Public Road Reserve issued by the Council under the provisions of Section 138 of the Roads Act 1993 for the design and construction of any works located on the road reserve. 7. Civil engineering details of the proposed excavation/landfill are to be submitted to the Accredited Certifier or Council with the Construction Certificate application. Each plan/sheet is to be signed by a qualified practising Civil Engineer who has corporate membership of the Institution of Engineers Australia (M.I.E) or who is eligible to become a corporate member and has appropriate experience and competence in the related field. 8. An amended landscape plan is to be provided prior to the release of the Construction Certificate which accounts for the provision of at least three (3) more tall canopy trees (either on or offsite) and provides further and more effective screen planting along all boundaries around the proposed buildings. This plan should also reflect the amendments to the rear building as shown on the architectural plans dated March 17 2010. 9. Submission of construction plans and specifications and documentation which are consistent with the approved Development Consent plans, the requirements of Building Code of Australia and satisfy all conditions shown in Part B above are to be submitted to the Principal Certifying Authority. 10. The Accredited Certifier or Council must be provided with a copy of plans that a Quick Check agent/Sydney Water has stamped before the issue of any Construction Certificate. 11. The applicant is to consult with Sydney Water to establish whether there are any Section 73 Compliance Certificate requirements for this proposal, under the provisions of the Sydney Water Act, 1994. A copy of any Notice of Requirements letter which may be issued by Sydney Water, is to be provided to the Private Certifying Authority with the Construction Certificate application.

Application must be made through an authorised Water Servicing Coordinator. Please refer to the Building Developing and Plumbing section of the web site www.sydneywater.com.au then refer to "Water Servicing Coordinator" under "Developing Your Land" or telephone 13 20 92 for assistance. Following application a "Notice of Requirements" will advise of water and sewer infrastructure to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer infrastructure can be time consuming and may impact on other services and building, driveway or landscape design.

12. Any proposed demolition works shall be carried out in accordance with the requirements of AS2601-1991 The Demolition of Structures .

Amongst others, precautions to be taken shall include compliance with the requirements of the WorkCover Authority of New South Wales, including but not limited to:

1. Protection of site workers and the general public. 2. Erection of hoardings where appropriate. 3. Asbestos handling and disposal where applicable. 4. Any disused service connections shall be capped off.

Council is to be given 48 hours written notice of the destination/s of any excavation or demolition material. The disposal of refuse is to be to an approved waste disposal depot.

13. A contribution of $45,800is to be made to Cashier Code SOPS, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Embellishment of Open Space, Bushland and Recreation in accordance with Section 94 Contributions Plan No.2. The Contributions Plan may be inspected at Pittwater Council, No 1 Park Street, Mona Vale. The Section 94 contribution is to be paid prior to issue of the Construction Certificate. Where rates payable under Section 94 Contributions Plan No 2 are reviewed and varied, the applicant is to pay the contribution rate as specified in the plan as it exists at the time of contribution. 14. A contribution of $9,280 is to be made to Cashier Code SLEL, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Public Library Services in accordance with Section 94 Contributions Plan No.3. The Contributions Plan may be inspected at Pittwater Council, No 1 Park Street, Mona Vale. The Section 94 contribution is to be paid prior to issue of the Construction Certificate. 15. A contribution of $17,490 is to be made to Cashier Code SCSF, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Community Services Facilities in accordance with Section 94 Contributions Plan No.18. The Contributions Plan may be inspected at Pittwater Council, No 1 Park Street, Mona Vale. The Section 94 contribution is to be paid prior to issue of the Construction Certificate. 16. A contribution of $26,420 is to be made to Cashier Code SVSS, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for providing improved Village Streetscapes in accordance with Section 94 Contributions Plan No.19. The Contributions Plan may be inspected at Pittwater Council, No1 Park Street, Mona Vale. The Section 94 contribution is to be paid prior to issue of the Construction Certificate. Where rates payable under Section 94 Contributions Plan No 19 are reviewed and varied, the applicant is to pay the contribution rate as specified in the plan as it exists at the time of contribution. 17. Certification from the Accredited Access Adviser that design details and specifications comply with the Accessibility Control and the DA Access Report, must be submitted to the Accredited Certifier or Council with the Construction Certificate application. 18. The finished surface materials, including colours and texture of any building, shall blend with the surrounding and/or natural materials and shall be non-glare. 19. Plans and details demonstrating that the commitments identified in the BASIX Certificate that apply to the construction certificate or complying development plans and specifcations are fulfilled.

D. Matters to be satisfied prior to the commencement of works and maintained during the works: Note: It is an offence to commence works prior to issue of a Construction Certificate.

1. All excavated material is to be removed from the site, other than in accordance with condition D17. 2. All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards. 3. All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property. 4. Where excavations extend below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation must preserve and protect the building from damage and, if necessary, underpin and support the adjoining building in an approved manner. 5. Temporary sedimentation and erosion controls are to be constructed prior to commencement of any work to eliminate the discharge of sediment from the site. 6. Adequate measures shall be undertaken to remove clay from vehicles leaving the site so as to maintain public roads in a clean condition. 7. Waste materials generated through demolition, excavation and construction works are to be minimised by re-use on site, recycling or where re-use or recycling is not practical, disposal at an appropriate authorised waste facility.

All waste dockets and receipts regarding demolition, excavation and construction waste are to be retained on site to confirm which facility received the material for recycling or disposal.

The ongoing operation of Recycling and Waste Management Services is to be undertaken in accordance with the Waste Management Plan. 8. The site is to be fully secured by a fence to all perimeters to the site to prevent unauthorised access both during the course of the works and after hours. 9. No works are to be carried out in Council's Road Reserve without the written approval of the Council. 10. A Road Opening Permit, issued by Council, must be obtained for any road openings, or excavation within Council's Road Reserve associated with the development on the site, including stormwater drainage, water, sewer, electricity, gas and communication connections. During the course of the road opening works the Road Opening Permit must be visibly displayed at the site. 11. No skip bins or materials are to be stored on Council's Road Reserve. 12. A clearly legible Site Management Sign is to be erected and maintained throughout the course of the works. The sign is to be centrally located on the main street frontage of the site and is to clearly state in legible lettering the following: - The builder's name, builder's telephone contact number both during work hours and after hours. - That no works are to be carried out in Council's Road Reserve without the written approval of the Council. - That a Road Opening Permit issued by Council must be obtained for any road openings or excavation within Council's Road Reserve associated with development of the site, including stormwater drainage, water, sewer, electricity, gas and communication connections. During the course of the road opening works the Road Opening Permit must be visibly displayed at the site. - That no skip bins or materials are to be stored on Council's Road Reserve. - That the contact number for Pittwater Council for permits is 9970 1111. 13. All construction in the public road reserve must be undertaken by a Council authorised contractor. 14. A satisfactory construction traffic management plan (CTMP) prepared by a suitably qualified traffic consultant is required to be submitted to the Private Certifying Authority prior to the commencement of any site works. The plan is to detail: - Quantity of material to be transported - Proposed truck movements per day - Proposed hours of operation - Proposed traffic routes, noting that 3 tonne load limits apply to some roads within Pittwater 15. Protection fencing measures (including sedimentation fences) are to be installed in accordance with all approved plans including those specified in the Arborist Report and/or Ecological Sustainability Plan or Bushland Management Plan. Protection measures are to be maintained for the duration of works. Protection fencing that is no longer required is to be removed once all works are completed. 16. As there are existing trees to be retained within 5 metres of proposed development works, all recommendations as outlined in the supplied arborist report by Footprint Green Pty Ltd dated 29th September 2009 are required to be complied with before and throughout the development period, particularly with regard to the following: i. Works, erection/demolition of structures, excavation or changes to soil levels within 5 metres of existing trees are not permitted unless part of the development as approved, and the storage of spoil, building materials, soil or the driving and parking of any vehicle or machinery within 5 metres of the trunk of a tree to be retained is not permitted; ii. Where specified, tree guards are to be provided to all trees as indicated in the report, and are to be installed prior to the commencement of any work on the site. Tree guard materials and dimensions are specified in the arborist report; iii. All works within 5 metres of existing trees including demolition, excavation, civil works, fencing and the like must be carried out by hand and under the supervision of an experienced and suitably qualified arborist. In the event that major structural or feeder roots are encountered, the arborist is to advise the builder to carry out appropriate action to ensure the retention of the tree. iv. Signage is to be erected advising all contractors and visitors to the site that no works or storage are to take place within the dripline of existing trees.

Any changes or alterations made to the tree management recommendations as outlined by the arborist report due to the discovery of new structural roots or underground services during development works must be reported to the Principal Certifying Authority prior to works recommencing. As Tree 1 (to be removed) is located on Council-owned road reserve, as per the Tree Preservation Order, the removal of this tree must be carried out by Council-authorised contractors. Please contact Andrew Thor on 99701361 for more information.

17. During site excavation, topsoil which is to be used in later landscape works is to be stockpiled on site and stabilised during construction works. Stockpiles are to be stored outside of hazard areas and not located within the dripline of existing trees which are to be retained. 18. A stamped copy of the approved plans is to be kept on the site at all times, during construction. 19. Toilet facilities are to be provided in a location which will not detrimentally affect the amenity of any adjoining residents at or in the vicinity of the work site during the duration of the development. 20. Where excavations extend below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation must give the owner of the adjoining property at lease seven (7) days written notice of their intention to excavate below the level of the base of the footing and furnish the adjoining property owner with particulars of the proposed work. 21. Demolition works must be carried out in compliance with WorkCovers Short Guide to Working with Asbestos Cement and Australian Standard AS 2601 1991 The Demolition of Structures.

The site must be provided with a sign containing the words DANGER ASBESTOS REMOVAL IN PROGRESS measuring not less than 400mm x 300mm and be erected in a prominent visible position on the site. The sign is to be erected prior to demolition work commencing and is to remain in place until such time as all asbestos cement has been removed from the site and disposed to a lawful waste disposal facility. All asbestos laden waste, including flat, corrugated or profiled asbestos cement sheets must be disposed of at a lawful waste disposal facility. Upon completion of tipping operations the applicant must lodge to the Principal Certifying Authority, all receipts issued by the receiving tip as evidence of proper disposal.

22. All provisions of the SEPP (HS&PD, Scehdule 3, Part 1 and Part 2 Self-contained dwellings - standards concerning access and useability are to be satisfied and achieved through the construction and installation details.

E. Matters to be satisfied prior to the issue of Occupation Certificate:

1. Prior to issue of the Occupation Certificate, Form 3 of the Geotechnical Risk Management Policy (Appendix 5 of P21 DCP) is to be completed and submitted to the Principal Certifying Authority. 2. Certification is to be provided to Private Certifying Authority by a qualified experienced practicing Civil Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a corporate member and has appropriate experience and competence in the related field, that the on-site detention system has been completed in accordance with the engineering plans and specifications required under this consent. 3. Certification is to be provided to the Principal Certifying Authority by a qualified experienced practicing Civil Engineer with corporate membership of the Institute of Engineers Australia (M.I.E.), or who is eligible to become a corporate member and has appropriate experience and competence in the related field, that the drainage/stormwater management system has been installed to the manufacturer's specification (where applicable) and completed in accordance with the engineering plans and specifications required under this consent. 4. A certificate submitted by a Chartered Professional Engineer confirming to the satisfaction of the Principal Certifying Authority that the works in the public road reserve comply with Council requirements is to be provided with the Occupation Certificate application. 5. Prior to issue of an Occupation Certificate photographic evidence of the condition of the street trees and road reserve and area adjoining the site after the completion of all construction, must be submitted to the Principal Certifying Authority showing that no damage has been done and if damage has been done that it has been fully remediated. The photographs shall be accompanied by a statement that no damage has been done (or where damage has been remediated that Council has approved that work). In this regard Council's written agreement that all restorations have been completed satisfactorily must be obtained prior to the issue of any Occupation Certificate. 6. Restoration of all damaged public infrastructure caused as a result of the development to Council's satisfaction. Council's written approval that all restorations have been completed satisfactorily must be obtained and provided to the Private Certifying Authority with the Occupation Certificate application. 7. A landscape practical completion report is to be prepared by the consultant landscape architect/designer and submitted to the Principal Certifying Authority with the Occupation Certificate application. This report is to certify that all landscape works have been completed in accordance with the landscape working drawings and specifications. 8. An Occupation Certificate application stating that the development complies with the Development Consent, the requirements of the Building Code of Australia and that a Construction Certificate has been issued must be obtained before the building is occupied or on completion of the construction work approved by this Development Consent. 9. A copy of the Section 73 Compliance Certificate issued under the provisions of the Sydney Water Act, 1994, is to be forwarded to Council or the Private Certifying Authority with the Occupation Certificate. 10. All existing and /or proposed dwellings/sole occupancy units are to have approved hard-wired smoke alarms installed and maintained over the life of the development. All hard-wired smoke alarms are to be Australian Standard compliant and must be installed and certified by any appropriately qualified electrician prior to the issue of any Occupation Certificate. 11. A qualified acoustic engineer is to certify that the maximum noise level associated with the pool filter does not exceed 5dB(A) above ambient background level, when measured from any adjoining premises. 12. Prior to the release of the occupational certificate, documentation is to be submitted by a licensed plumber to the private certifying Authority confirming that the car wash bay waste waters drain into the sewer. 13. Prior to occupation a covenant is to be created on the title of the land, at the applicants expense, the terms of which state that the ownership of the individual dwellings to be constructed on the property cannot be individually assigned by any agreement, dealing or instrument based on the ownership of company shares. Proof of the creation of the covenant is to be provided to the Private Certifying Authority with the Occupation Certificate application. 14. All external face brick walls are to be properly cleaned down following completion of the wall and prior to occupation. 15. A restriction on use of the land is to be created on the title of any new lots, the terms of which burden the said lots, benefit Council and restrict the occupancy of the lot to persons defined in State Environmental Planning Policy (Seniors Living) as to "older people" or "people with a disability" or people who live with older people or people with a disability. All matters relating to this restriction on use of the land are to be finalised prior to release of the Occupation Certificate. 16. Any lease or tenancy or agreement prepared for a residence within this development is to contain terms which prohibit occupation of the residence by persons other than those specified in State Environmental Planning Policy (Seniors Living) as aged or disabled persons together with any person who live with aged or disabled person(s). Further the "by laws" of any body corporate created through strata subdivision of the development are to contain terms which prohibit the use of any strata unit other than by persons specified in State Environmental Planning Policy (Seniors Living) as aged or disabled together with any bona fide carer(s). 17. An Accredited Access consultant is to certify that the development has complied with the construction certificate details and the design details and technical specifications relevant to recommendations in the Access Assessment Report, dated29 September 2009 prepared by Acessibility Solutions Pty Ltd and in accordance with all relevant accessibility provisions of State Environmental Planning Policy (Housing for Seniors and People with a Disability). 18. Certification is to be provided that the commitments identified in the BASIX Certificate have been fulfilled.

G T Brown Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.